F, Re
[2024] EWHC 2849 (Fam)
Re Z (Foreign Surrogacy)
24 October 2024
[2024] EWFC 304
Family Court
Two dads wanted a baby through a surrogate. They used an agency and made choices that led to legal problems. Even though they made mistakes, a judge gave them parental rights because it was best for the baby. The judge warned future parents to be much more careful about the laws in the places where they try to have babies via surrogacy.
Key Facts
- •Application for a parental order concerning Z, a child born via surrogacy arrangements involving applicants A and B (a same-sex couple) and surrogate X.
- •Surrogacy arrangements took place across multiple jurisdictions (Cyprus, Country Y, Country W), where same-sex surrogacy is not permitted.
- •Applicants lacked clarity regarding the legal frameworks in the jurisdictions involved, leading to precarious legal positions for all involved.
- •Application for a parental order was made over six months after Z's birth.
- •Questions arose concerning A's domicile in the UK, X's consent to the order, and the legality of payments made beyond reasonable expenses.
- •The agency involved played a significant role in the process, and several aspects of its conduct were questionable.
- •Z was born in Country W, and both A and X are registered as parents on the birth certificate.
Legal Principles
Parental orders are governed by section 54 HFEA 2008, the Human Fertilisation and Embryology (Parental Order) Regulations 2018, and Part 13 of the Family Procedure Rules 2010.
HFEA 2008, Parental Order Regulations 2018, FPR 2010
Section 54 HFEA 2008 outlines criteria for granting parental orders, including artificial conception, genetic relation to one parent, relationship status of intended parents, application timeframe, child's residence and domicile, age of intended parents, surrogate consent, and permissible payments.
Section 54 HFEA 2008
The court can permit parental order applications outside the six-month timeframe under specific circumstances (Re X (A Child)(Surrogacy: Time Limit) [2014] EWHC 3135 (Fam)).
Re X (A Child)(Surrogacy: Time Limit) [2014] EWHC 3135 (Fam)
Domicile is a question of fact (Z v C (Parental Order: Domicile) [2011] EWHC 3181 (Fam)).
Z v C (Parental Order: Domicile) [2011] EWHC 3181 (Fam)
Surrogate consent must be freely, unconditionally, and fully understood (s54(7) HFEA 2008).
s54(7) HFEA 2008
The court can authorize payments beyond reasonable expenses under certain circumstances (s54(8) HFEA 2008).
s54(8) HFEA 2008
A parental order should only be refused on the clearest case of abuse of public policy (Re L (a minor) [2010] EWHC 3146 (Fam)).
Re L (a minor) [2010] EWHC 3146 (Fam)
Previous cases have considered public policy concerns in surrogacy, focusing on exploitation or evasion of public authorities (Re AW (Adoption Application) [1992] 1 FLR 62; Re C (Parental Order) [2014] 1FLR 654; A & Anor v A Local Authority & Anor [2014] EWHC 4816 (Fam); A, B and C (UK surrogacy expenses) [2016] EWFC 33).
Various cases cited in section 42
The court considered Re W and X (Foreign Surrogacy) [2022] EWFC 120 in relation to the applicants pursuing surrogacy in a jurisdiction that did not permit same-sex surrogacy arrangements.
Re W and X (Foreign Surrogacy) [2022] EWFC 120
Outcomes
Parental order granted.
The court found that the s54 criteria were met, considering the welfare needs of Z and the unique circumstances of the case. While the applicants' actions were criticized, the court weighed this against Z's welfare and the lack of exploitation of the surrogate.